Court name
Supreme Court
Case name
Kamwi v Duvenhage and Another
Media neutral citation
[2008] NASC 17





REPORTABLE















REPORTABLE



CASE
NO. SA
: 22/2008









IN THE SUPREME COURT OF
NAMIBIA







In the matter between














ALEX
MABUKU KAMWI



APPELLANT






And














HANNELIE
DUVENHAGE


ETZOLD-DUVENHAGE
LEGAL PRACTITIONERS



FIRST
RESPONDENT


SECOND
RESPONDENT












CORAM: Maritz, JA,
Chomba, AJA, et Damaseb, AJA



Heard on: 2008/10/28



Delivered on 2008/11/24










APPEAL JUDGMENT










CHOMBA,
A.J.A.



[1] On
6 July 2007 the appellant, whom I shall henceforth refer to as the
applicant, presented an application for default judgment to be heard
in the High Court before Heathcote, AJ. The history of the matter is
that the applicant instituted an action by combined summons whereby
he claimed against the defendants, who are now the respondents to
this appeal, a gross amount of a little more than N$580, 000 plus
interest and costs. The defendants were also the respondents to the
application for the default judgment and, because this appeal is the
sequel to that application, I shall continue referring to them as
respondents throughout this judgment. They filed an exception to the
claim, but that exception was struck off for reasons not relevant
hereto. According to the applicant’s impression, the
respondents were expected to file a fresh exception, but the
respondents’ legal representative informed the applicant that
the respondents were not prepared to do so. Thereupon the applicant
purported to bar them from participating further in the proceedings.






  1. Therefore
    when the applicant applied for default judgment and,
    consequentially, a set down for the hearing of that application, he
    did not think that it was necessary to give notice to the
    respondents. The application was purportedly made under Rule 31(4)
    of the High Court Rules. The lack of notice notwithstanding, Ms
    Gabers-Kirsten attended the default judgment application proceedings
    as legal representative of the respondents, but she expressed
    surprise to see the matter on the roll of the day. The applicant,
    who was appearing in person, explained that after he had filed what
    he called the "notice of bar" he did not think that they
    were entitled to participate further in the proceedings. He,
    therefore, questioned the propriety of the respondents being
    represented in the proceedings.







  1. During
    the hearing which ensued, the presiding Judge and the applicant
    engaged in a short dialogue concerning circumstances touching on the
    default application. Thereafter, in an extempore judgment, the
    Judge made what he termed an order, but that order was in the nature
    of a ruling. In it he stated that he accepted, without so deciding,
    that the defendants – referring to the respondents as they
    were named in the combined summons – were barred from filing a
    plea, but he queried the fact that the amounts as claimed in the
    particulars of claim were different from those in the application
    for default judgment. Having summarised the details in the
    particulars of claim, which he called "a conglomerate of
    unhappiness" on the part of the applicant, he concluded that
    there was no cause of action disclosed and then dismissed the action
    with costs.







  1. Those
    were the circumstances which gave rise to this appeal. When the
    appeal came before us for hearing, the applicant still appeared in
    person, while advocate Schickerling represented the respondents. It
    is apposite to mention at this stage that the heads of argument on
    behalf of the respondents were filed and received by us only on the
    very day of the hearing. Advocate Schickerling was most apologetic
    about this and applied for condonation. However, he assured us that
    a copy of those heads was served on the applicant on or about 27
    September 2008. The applicant disputed that date, although he said
    that when service of the heads was effected at his office he was not
    present. He claimed to have seen the heads on 2 October 2008.







  1. In
    his heads of argument advocate Schickerling raised three points
    in
    limine
    relating
    to the following matters, namely the late filing of the record of
    appeal, the incompleteness of the said record and thirdly failure to
    furnish security for the respondents’ costs of the appeal.
    Moreover and as regards the incompleteness of the record, on the
    14
    th
    October, a fortnight before the hearing date, this court caused a
    letter to be addressed to the applicant and it read in part as
    follows:







Their
Lordships, the Judges who will preside on the appeal have remarked as
follows:






The
record of appeal seems to be significantly and substantially
incomplete. Kindly advise the appellant that he is required to file
heads of argument by no later than noon on the 22 October 2008 why
the appeal should not be struck from the roll with costs due to
non-compliance with the provisions of Rule 5(5) of the Rules of the
Supreme Court.’”








[6] In
the light of the foregoing, we, at the outset, indicated to the
parties hereto that we would reserve our decision on adv.
Schickerling’s condonation application, would not entertain
arguments on the merits of the appeal, but would only hear arguments
on the preliminary points. This judgment is, therefore, concerned
with, and is based on, the submissions we heard, and it is inclusive
of our decision on the condonation application on behalf of the
respondents.





Points
in
limine.


Incompleteness
of the Record of Appeal



  1. The
    record of appeal
    in
    casu

    consists of two volumes. One is headed “Records” and it
    comprises an index with only one item in it, namely "records of
    court." Inside the volume itself are minutes of the
    proceedings in the court
    a
    quo
    and
    then the transcriber’s certificate. The second volume is
    headed “Appeal” and contains the following documents:
    the notice of appeal, the notice to oppose the appeal, and these are
    followed by two orders signed by the Registrar of the High Court on
    19 February 2007 and 6 July 2007 respectively. The first order
    states that the matter was struck off the roll while the second is
    about the dismissal of “the action” with costs. On the
    face of it, the earlier order would appear to relate to the striking
    off of the exception and the latter is the order impugned in this
    appeal.







  1. Rule
    5(13) of the rules of the Supreme Court is couched in the following
    terms:







5.
(13) The copies of the record shall include the reasons given by the
judges appealed from and shall contain a correct and complete index
of the evidence and of all the documents and exhibits in the case,
the nature of the exhibits being briefly stated in the index.”







  1. Before
    discussing the non-compliance with the above-mentioned sub-rule, it
    is necessary to also refer to sub-rule (16) of the same Rule 5. It
    reads as hereunder set out -







(16)
The registrar may refuse to accept copies of records which do not in
his or her opinion comply with the provisions of this rule.”









  1. I
    shall comment later on the relevance of sub-rule (16). For now, I
    revert to the point regarding the incompleteness of the record. The
    contents of the record filed by the applicant have been reproduced
    in paragraph [7] above. It is patent that when those contents are
    tested against the requirements of sub-rule (13) of Rule 5, the
    record is indeed scanty and incomplete. The absence of the combined
    summons and the pleadings is conspicuous. The notice of bar and the
    application for default judgment were also not included. All those
    documents were essential for scrutiny by this Court. As if the
    failure to include those documents in the record of appeal was not
    bad enough, the applicant purported to file the combined summons and
    the particulars of claim as attachments to an affidavit which was
    itself an attachment to the heads of argument. Moreover, the
    inclusion of an unsolicited affidavit as an attachment to heads of
    argument is simply unheard of. The presentation of the record of
    appeal was an utter fiasco, quite apart from the record being
    incomplete.






[11] The
non-inclusion of vital documents in a record of appeal makes an
appellate court’s work as difficult as it is to build a house
where there is no foundation. In this case the action as presented
in the court below did not run the full course: the parties did not
present the totality of their cases; and there was no judgment on the
merits. Therefore, the documentation necessary for compiling a
record of appeal was minimal. For that reason a record consisting of
one volume only would have sufficed. An appellate court’s duty
is to do justice between the parties. That duty can only be
satisfactorily accomplished after the parties have comprehensively
presented their arguments. To ably present comprehensive arguments
each party needs a complete record, except that under sub-rule
5(5)(i) or 5(5)(ii) the parties may by mutual consent dispense either
with the whole or part of the record.





[12] It
is important for a respondent to an appeal to be furnished with the
fullest information possible for the additional reason that he or she
should be aware of the case he or she will be required to challenge
at the hearing of the appeal. Unless he or she is in possession of
such information he or she will be handicapped and prejudiced in
preparing himself or herself for the task of opposing the appeal.
The need for a full and complete record is even greater where the
legal practitioner who is going to represent a respondent is not the
same as the one who appeared for the respondent at the trial court,
as was the position in the present case. It was, therefore no wonder
that adv. Schickerling complained during the proceedings before us
that his clients were prejudiced by the applicant’s failure to
file a complete record. The Court agrees with him.






  1. Filing
    of incomplete records of appeal can attract serious consequences
    against the defaulting party. In the
    Ministry
    of Regional and Local Government and Housing v Muyunda
    2005
    NR 107
    ,
    Damaseb,
    P, agreed with counsel for the respondent who submitted (the other
    party conceding) that where there is non-compliance with the rule of
    court which requires the filing of a complete record, an appeal
    should be struck off the roll. I would also agree, but as in the
    present case this is not the end of the matter, I defer my final
    view.







  1. Before
    discussing the second point, let me briefly revert to sub-rule (16)
    of Rule 5. When applied, that sub-rule can play a pivotal role in
    the process leading to the hearing of appeals in this Court. It
    empowers our registrar by giving him or her a discretion to refuse
    to accept copies of records which do not in his or her opinion
    comply with the provisions of Rule 5. Had the registrar invoked
    this rule when the so-called “appeal” was filed, the
    position in which the Court was placed of not being able to hear the
    appeal on the merits would have been avoided.






Late
filing of the record of appeal



  1. Sub-rule
    (5) of Rule 5 states as follows –







5(5) After
an appeal has been noted in a civil case the appellant shall, subject
to any special directions by the Chief Justice –






(a)…







(b) in
all other cases within three months of the date of the judgment or



order
appealed against or, in cases where leave to appeal is required,



within
three months after granting such leave;







(c)
within such further period as may be agreed to in writing by the
respondent;






lodge
with the registrar four copies of the record of the proceedings in
the court appealed from, and deliver such number of copies to the
respondent as may be considered necessary.”








There
is a proviso to the sub-rule, but because it is irrelevant to the
matter at hand there is no need to reproduce it.






  1. The
    order dismissing the applicant’s default judgment application
    in this case was made on 6 July 2007. In terms of the requirement
    in Rule 5(5)(b),
    supra,
    that
    was the date from which the three month period started to run. On
    July 20 the notice of appeal was filed, but the record of appeal was
    filed piecemeal as follows – the volume entitled “Appeal”
    on 29 April 2008 and that entitled “Records” on 14
    August 2008. The latter date, 14 August 2008, is the day of
    reckoning as the lodgement date in this case because the volume
    lodged on the earlier date, consisting, in substance, of only the
    notice of appeal, the notice to oppose the appeal, followed by the
    two orders earlier mentioned, cannot pass as a record at all. If
    Rule 5(5) was complied with, the record should have been lodged on 5
    October 2007, as that was the deadline. That means, therefore, that
    the record in this case was lodged more than 12 months after the
    date of the impugned order, or nine months out of time.







  1. In
    answer to the complaint by adv. Schickerling that the record was
    lodged out of time, the applicant gave no explanation. However,
    applicant's explanation may be gleaned from his response to the
    letter which, as stated earlier, was addressed to him on the Court's
    direction. In the response he recapitulated that the judgment he
    was impugning was delivered on 6 July 2007; and that he noted his
    appeal on 20 July. He then lodged the bundle titled "Appeal"
    on 24 April 2008. Such lodgement, he argued, was never a delayed
    one because he noted the appeal within the prescribed period.
    Furthermore, he explained that the delay was occasioned by the
    record transcriber. In the light of these circumstances, he
    contended, the delay having been caused by a third party should not
    attract a sanction against him since, according to him it was a
    technical delay. In the event, he concluded, that the Court should
    condone such delay.







  1. If
    I heard him correctly during the appeal proceedings, the applicant
    asked that the Court should adjourn the appeal
    sine
    die

    and award the wasted costs to the respondents. He further
    submitted, as far as I could gather, that in the circumstances
    prevailing, the Court may,
    mero
    motu,

    condone the non-compliance with the relevant rule. On the other
    hand, adv. Schickerling prayed that the appeal should be struck off
    the roll. As is implicit from his above-mentioned arguments, the
    applicant has not made any formal written, let alone any informal
    oral, application to the Court for condonation.








    1. The
      issue of failure to comply with Rule 5(5),
      supra
      was considered in the
      Chairperson
      of the
      Immigration
      Selection Board v Frank,
      2001
      NR 107
      .
      Strydom, CJ, being faced in that case with the same problem of
      non-compliance with Rule 5(5)
      supra,
      dealt
      with the matter as stated in the following dictum which I now quote
      from page 164D – E:








Discussing
the effect of the non-compliance with AD Rule 5(4) of South Africa,
which is in all material respects similar to our Rule 5(5), Vivier JA
in the case of
Court
v Standard Bank of SA Ltd; Court v Bester NO and Others 1995 (3) SA
123 (A)

at 139F-I came to the conclusion that such failure results in the
appeal lapsing and that it was necessary to apply for condonation
to
revive it.

This in my opinion is also the effect of a failure to comply with
Supreme Court Rule 5(5).”

(
Underling
supplied)









  1. In
    Channel
    Life Namibia (Pty) Ltd v Gudrun Otto
    ,
    Case No. SA 22/2007 (unreported) delivered in the Supreme Court on
    15 August 2008, the same issue of breach of sub-rule 5(5) fell for
    determination by this Court. Counsel for respondent, Mr. Coleman,
    submitted to the effect that non-compliance with that sub-rule had
    the same consequence as failure to comply with sub-rule 5(6)(b).
    The effect of the latter sub-rule is that if an appellant fails to
    timeously lodge a record of appeal and has not within the prescribed
    period applied to the respondent or his or her legal representative
    for consent to extend the prescribed period and further fails to
    inform the registrar of having made such application, then the
    appeal shall be deemed to have been withdrawn. That result, Mr.
    Coleman argued, meant that the appeal goes out of the Court's hands.
    In other words the appeal, according to Mr. Coleman's submission,
    becomes irredeemably withdrawn from the Court.







  1. After
    reviewing relevant South African Court decisions based on
    counterpart procedural rules, Strydom, AJA, came to the conclusion
    that Namibian Rules 5(5) and 5(6)(b) were modelled on the same lines
    as their counterpart South African rules. Accordingly he held that
    Namibian Rules 5(5) and 5(6)(b) should not be given the same
    interpretation. He then went on (quoting part of paragraphs [37]
    and [38] of the judgment):







"[37]
I am not persuaded that our Rule (i.e. Rule 5(5)) is amenable to the
interpretation contended for by Mr. Coleman. More so as our Rule was
clearly modelled on the South African Rule and at the time the
interpretation given to that Rule was clear.







[38]
If Mr. Coleman’s interpretation of the Rule is accepted it
would mean that an appellant may be non-suited without him having
been amiss in any way and solely because of the neglect or
inadvertence of his legal practitioner, and no matter how deserving
his case may be, the Court would stand by helplessly to come to his
relief. In my opinion it could never have been the intention to
close the doors of the Court on an appellant under circumstances over
which the Court has no control. To do so would amount to an
abdication of the Court’s powers to regulate its own affairs
and would further also amount to the Court divesting itself of its
own jurisdiction, something which, in my opinion, the Court cannot
do."










  1. Stressing
    that sub-rule 5(6)(b) applied only in order to regulate the period
    within which a cross-appeal was to be prosecuted, he stated that
    breach of sub-rule 5(5), on the other hand, had a different
    consequence. He then concluded in paragraph [39] by stating:







"In
such an instance (i.e. breach of sub-rule 5(5)) the appeal is deemed
to have lapsed and may be struck from the roll. However, an
application for condonation may be brought in terms of Rule 18 and,
on good cause shown, the failure to comply with the Rules may be
condoned and the appeal be re-instated."









  1. The
    effect of Strydom’s foregoing dictum is that an application
    for condonation is a condition precedent to reviving an appeal which
    has lapsed due to non-compliance with the Rule 5(5) requirement. I
    must emphasize that in the instant case there is no application for
    condonation. For that reason the court is loath to exercise its
    unsolicited discretion to condone the applicant’s breaches,
    especially in the light of the fact that in this case the
    respondents’ legal representative has asked for punitive
    action to be taken in respect of each of the applicant’s
    breaches. Moreover, it is not the court’s duty, but that of
    the parties, to conduct their respective cases. The Court would be
    putting itself in an invidious position if it were perceived as
    being partial by going to the aid of a party who has run foul of the
    rules of court.






Failure
to furnish Security for Costs



  1. It
    is trite that in the absence of any special court order, the noting
    of an appeal automatically suspends the execution of the judgment
    appealed against. (See at page 870 under the rubric ‘(ii)
    Execution and security’ –

    The Civil Practice of the Supreme Court of South Africa,
    14th
    Ed. by Van Winsen, Cilliers and Loots). In raising this point
    in
    limine,
    adv.
    Schickerling relied on Rule 8 of the rules of this Court, of which
    sub-rules (2) and (3) provide as hereunder stated –







(2) If
the execution of a judgment is suspended pending appeal, the
appellant shall, before lodging with the registrar copies of the
record enter into good and sufficient security for the respondent’s
costs of appeal, unless –







  1. the
    respondent waives the right to security within 15 days of receipt of
    the appellant’s notice of appeal; or








  1. the
    court appealed from, upon application of the appellant delivered
    within 15 days after delivery of the appellant’s notice of
    appeal, or such longer period as that court on good cause shown may
    allow, releases the appellant wholly or partially from that
    obligation.















(3) If
the execution of a judgment is suspended pending appeal, the
appellant shall, when copies of the record are lodged with the
registrar, inform the registrar in writing whether he or she –







  1. has
    entered into security in terms of this rule; or








  1. has
    been released from the obligation, either by virtue of waiver by the
    respondent or release by the court appealed from, as contemplated in
    sub-rule (2),








and
failure to inform the registrar accordingly within the period
referred to in rule 5(5) shall be deemed to be a failure to comply
with the provisions of that rule.”









  1. The
    only response the applicant made to this point was that he was not
    aware of the need to furnish security, adding that the respondents
    should have, according to him, filed a notice of motion in order to
    raise the point but that they did not do so. I am not aware of any
    procedural requirement for a notice of motion in order to raise
    this, or any other, type of point
    in
    limine.
    It
    was perfectly in order to raise this point in the heads of argument,
    as the respondents did here.






Conclusion



  1. It
    will be noted that sub-rule (3) of Rule 8,
    supra,
    provides that failure to comply with that sub-rule has the same
    consequence as non-compliance with Rule 5(5),
    supra.
    As we have seen when considering the point relating to breach of
    Rule 5(5), the sanction is the lapsing of the appeal. The overall
    position is, therefore, that –







(a) breach of the rule
requiring the lodging of a correct and complete record of appeal is
striking the appeal off the roll.







(b) breach of the rule
requiring timely lodgement of the record of appeal is the lapsing of
the appeal followed by striking the appeal off the roll.







(c) breach of the Rule
requiring an appellant to furnish good and sufficient security for
the respondent’s costs of the appeal is also the lapsing of the
appeal, and similarly striking the appeal off the roll.






The
only consolation the appellant has is as stated by Strydom, CJ in
Frank’s
case,
supra,
namely to subsequently apply for condonation in order to revive the
appeal.





Condonation
for late filing of respondents’ heads of argument.



  1. As
    indicated at the outset, adv. Schickerling requested that this Court
    condone the late filing of the respondents’ heads of argument.
    Again as noted already, in making that request, counsel was most
    apologetic. What is more is that the heads were served on the
    applicant well within the period specified in the rules. In terms of
    Rule 11(2) of the rules of this Court a respondent to an appeal is
    required to file his or her heads of argument with the registrar and
    to serve copies of the same on the appellant 10 days before the
    hearing date. In the current case, even if we were to take the
    appellant’s word that they were served on 2 October 2007,
    service was effected at least twenty-six days before the hearing
    date. I am, therefore, satisfied that the applicant suffered no
    prejudice as might have been the case if the service was effected in
    breach of the procedural requirements. I think that the request for
    condonation for the late filing of the respondents’ heads of
    argument falls within the contemplation of Rule 18. The Court
    accordingly hereby grants condonation in retrospect.







  1. In
    the final analysis, I hereby order as follows –








    1. The
      appeal is struck off the roll with costs.
















________________________


CHOMBA,
AJA




















I
agree.

















________________________


MARITZ,
JA














I
also agree.

















________________________


DAMASEB,
AJA


































On
behalf of the Appellant:



In
person















Counsel
on behalf of the Respondents:


Instructed
by:



Adv.
J. Schickerling


Kirsten
& Co.